Saturday, September 20, 2008

Constitutional Means to Change Government

Yes, we are supposed to rejoice, the Barisan Nasional cum UMNO supporters.

September 16th didn't happen. It's already 20th September now.

Anwar seemed to be putting a bold front with new sets of stories to delay the inevitable. He either continue as MP in shame or resign. Didn't he said to close circle in Permatang Pauh that he will resign if he is not PM by September 16th?

As of yesterday, sleepy's day can be counted by the fingers on our limbs. Any attempt to resist on his part will only add further shame. Didn't this blogger said he could be denied nominations? The quota rule he manipulated could be "senjata makan tuan" (a weapon taking on it's owner). He is for all intent purpose finish!

The next day SAPP announced withdrawing from BN but it's two MP is not joining PR. SAPP is split.

In his September 16th press conference, Anwar said he has the numbers to change Government but is not revealing to anyone other than to the PM in a four eyed meeting. He claimed he is seeking a peaceful transition. Failing which, he will do so through Constitutional means.

He has already demanded for an emergency session on September 23rd, 2008 but denied by Abdullah. Many see that Parliament will be in session on October 13th, thus no reason for the hurry. Abdullah claimed Anwar is in such hurry to avoid his court case.

The fact that he is seeking audience with the King deserves the benefit of the doubt. A little bird said he met the King in the same week Abdullah also had an audience with the King. It seemed the King already stated he will not give him the consent due to his pending court cases. But thats just birdie talk.

Constitutional expert, Professor Aziz Bari of the International Islamic University Malaysia Law Faculty wrote two worthy read article on the issues relating to the constitutional mammer to change government in Malaysiakini.com yesterday and today.

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The king needs to intervene

Abdul Aziz Bari Sep 18, 08 1:40pm

The way Prime Minister Abdullah Ahmad Badawi responded to journalists' question on Anwar Ibrahim yesterday afternoon indicated that he actually treated the takeover threat posed by the opposition leader very seriously.

The night before Abdullah was reported to have said that Anwar's claim that the opposition had enough MPs to form the government was "mirage and dream" and that Anwar was just bluffing.

But less than 24 hours later Abdullah changed his tone: Anwar is now a threat to both the national security and the economy; something which alluded to the possibility of using the Internal Security Act to detain the opposition leader.

The government is obviously under siege. Apart from the Anwar threat, the ruling party is now grappling with internal power struggle. Given the way ministers view the use of ISA, it is hardly convincing to say that Abdullah is in full control of the cabinet.

It is not incorrect to say that we are now approaching crisis stage and in times like this we need something that perhaps appears to be somewhat extra-constitutional to handle the situation.

It is rather naïve to expect the ordinary way of doing things here. For one thing, the government appears to be panicking and as such no longer in a position to say, advise the Yang di-Pertuan Agong which, in common parlance, includes also the routine running of the administration.

It was curious to find that two days ago Abdullah met up with senior public servants; the secretary-generals of the government ministries who, under the constitution, are supposed to be neutral and loyal to the country.

A week ago, the armed forces chief General Abdul Aziz Zainal ruffled feathers when he told the government to act against those involved in creating tension between races in the country.

Apart from the unusual nature of the call, one knows that the main culprits were certain elements during the ruling party Umno itself: one of its divisional leader has been suspended from the party.

The only option

In any case, the call was not the only occasion whereby the normally apolitical armed forces crossed the line. Some months ago there was a joint exercise between the army and the police to deal with public unrest which provoked public outcry.

Unlike our neighbours such as Thailand and Indonesia, we do not have a constitutional court to turn to. We have the Federal Court that virtually plays that role. But for the past 51 years, it has never been called upon to adjudicate constitutional impasse before.

And unlike the Supreme Court of the United States - essentially the American constitutional court which has been called upon to decide on highly controversial issues such as abortion and affirmative actions - our Federal Court was ignored during the constitutional crises of 1983, 1988 and 1993.

Perhaps this has got something to do with the confidence and faith the people have in the credibility and ability of our top judges.

That leaves us with one option: going the Yang di-Pertuan Agong, the king, or the Conference of Rulers where all the nine rules sit to discuss, among others, federal matters.

And actually the king has some specific role and powers that can be used in the current situation. He may get some help from his nine brother rulers in conference which, the constitution says, may discuss anything it thinks fit.

The problem that we have now essentially revolves around the appointment of government which in the constitutional term, the appointment of the prime minister.

The constitution has put this duty on the king's shoulder: it is his discretion. In situations whereby it is clear-cut - that there is a majority with a clear leader - the king has no option but to appoint that leader as the prime minister and then take his advice on the formation of cabinet.

That situation can happen on several occasions. These include after the general elections, the death of the sitting prime minister and resignation.

Resignation can take place in various situations; such as the normal one like that of Dr Mahathir Mohamad in 2003 or when the House decided that it no longer support the head of government such as the one we saw in the resignation of Harun Idris as the mentri besar of Selangor in 1976 or that of Mohamed Nasir in Kelantan in 1977.

It is unfortunate that our constitution is silent on the matter. The only provision dealing with the issue is Article 43(4) which makes it mandatory for the prime minister, upon losing the support in the house, to resign.

What can the king do?

But the provision is silent on the question of censure, which is the normal way for the House to withdraw its support from the sitting premier. This has apparently been manipulated by the ruling Umno and Barisan Nasional.

Although they were behind the moves that took place in Sarawak in 1966 - ousting Chief Minister Stephen Kalong Ningkan - and Harun Idris in Selangor, they sing different tune this time around.

We have seen how the speaker of the present Dewan Rakyat - virtually appointed by Prime Minister Abdullah - did his best to thwart the attempt made by the Pakatan Rakyat to table the motion of confidence.

But law stands and whatever they have to say we need to follow the law as it is.

How does the king come to the picture in the present impasse? As a matter of law, the king has to act on the advice of the government. And thus, although the constitution does not say it, he must ensure that he has a government at all times.

And when there is a situation where there are questions and claims being about the fitness of the sitting government, the king should not just suit back and wait: he must move forward and take charge of the situation.

Apart from his constitutional duties, apparently, in our system now, there is no one else to do so. We cannot rely on the government for its legitimacy - some may say its legality - to stay in power is very much in question.

As a matter of protocol it might be improper for Anwar to go the palace now. As such, the king should send for him in order to furnish him with the list of MPs he has been claiming.

Of course, the king has every right to speak with MPs to ascertain the truth. This was indeed done by the Rulers of Selangor and Perlis in the aftermath of 12th general election last March.

Should the king find that the claim of Anwar - that he has got enough MPs to form the government - to be true then the king should tell Abdullah to tender his resignation.

As has been stated above, a prime minister who has lost the support of the House has a legal duty to resign together with his entire cabinet.

The original draft prepared by the Reid Commission contained a provision which empowered the king do dismiss such a premier but somehow was deleted in the final draft which now stands as our constitution.

But the king could still assert the power as it is obviously necessary to remove the clog that stands in the way of government appointment.

Suspending the constitution

In any case, the recalcitrant prime minister is no longer prime minister as he has lost the support: in other word, the king is just doing something to allow the constitution to function.

Article 43(4) of the Federal Constitution also talks about dissolution.

However one needs to read this provision in conjunction with Article 40(2)(b) which gives the king a discretion whether or not to grant a dissolution requested by the prime minister.

The Reid Commission recommended that there are reasons - given the experience of the Commonwealth - why the matter should be left for the king to decide.

One of the reasons was to prevent the country from being put on "dissolution diet" by a besieged government.

Coming back to present situation, it is constitutionally incorrect for the king to grant a dissolution to pave the way for another round of elections: we have just had one in March and that now there is a likelihood to form a government without going through another elections.

The possibility of invoking Article 150 which empowers the federal government with vast powers - virtually suspending the constitution - has been raised in some quarters.

It must be said that only the king can do so.

Although he has to act on the advice, government there are good reasons to argue that the general provision under Article 40(1) of the Federal Constitution admits exceptions: advice must be constitutional and that it does not have the implication that run counter to the notions of democracy and constitutionalism which stand at the very heart of the constitution.

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Anwar's takeover - king or Parliament?

Abdul Aziz Bari Sep 19, 08 5:49pm

As expected Prime Minister Abdullah Ahmad Badawi has flatly rejected the request for a special meeting of the Dewan Rakyat made by Opposition Leader Anwar Ibrahim.

But this is not surprising as - despite the polite way the latter put it - the request was virtually asking Abdullah to put himself on the chopping block: two days before Anwar claimed that he had the numbers to take over the government.

What happened on Thursday revealed the problem with the formula; namely taking over the government through the vote of no-confidence on the floor of the house.

Of course this approach is both democratic and constitutional. But given the legal and political culture prevalent in this country, it is doubtful if this can take place.

From the point of view of state governing, Malaysia belongs to the Westminster category whereby the office of the head of state is separated from the head of government.

Although the former plays a largely symbolic role the holder may assume active role in relevant and critical circumstances.

It seems that the option preferred by Anwar was recommended by advisers close to the palace.

Sources told that they had some misgivings about Anwar going straight the Yang di-Pertuan Agong, the king, to get the permission to form the new government.

It was pretty obvious that they wanted to avoid the king from being dragged into the murky waters of politics.

The advisers have apparently ignored the guardianship role of the king; something that is common in all Westminster democracies.

And this is not only limited to kings or sultans: even in republics like India ceremonial head of states may assume some extraordinary powers in crisis situations. Indeed some allusions to such a role were also apparent in the Reid Commission Report.

However given that this is the first time we have a regime change at the federal level such apprehension was quite natural.

Petitioning the king

Be that as it may true to his maverick tag Anwar, in his press conference, did not discount the option of going straight to the palace.

Now that Prime Minister Abdullah has declined his request Anwar has thereby been put on a better footing with it: he now has a legitimate ground to petition direct to the king.

After all Anwar has virtually exhausted the means which would have avoided any involvement of the king.

As the law stands it is not clear whether to have the regime change through Parliament is the only way.

Indeed the wording of Article 43(4) of the Federal Constitution seems to suggest that it can be done outside Parliament; namely the majority group simply tells the Yang di-Pertuan Agong that they have withdrawn their support from the sitting government.

As the provision has made it mandatory upon the prime minister who has lost the support resigning, the king then can appoint an MP who enjoys the support of the majority in the house as the new prime minister.

That notwithstanding the practice of throughout the Commonwealth has consistently shown the manner by which the withdrawal of support is indicated; namely through the motion of no confidence or censure.

But as we have seen such was difficult to do here in Malaysia: Umno has been deploying all sorts of tricks to prevent the tabling of the motion, the most recent being the outright rejection by Abdullah.

The view which insists on the parliamentary approach seems to be oblivious to this.

In any case it is doubtful if the constitution really envisaged the sitting prime minister to have the final say over the summoning of Parliament as claimed by Speaker Pandikar Amin Mulia.

For one thing the premier is the head of the executive branch and to put the legislature under the control of the executive would run counter to the notion of separation of powers inherent in the system.

Apart from that, as we have seen, there would be situations whereby it involves the very survival of the government itself.

To fortify his position, the speaker cited a provision from the Standing Orders. But as matter of law, this provision is subservient to the constitution - the rules regulating the parliamentary procedures have been framed by virtue of Article 62(1) of the federal constitution.

An untenable proposition

The speaker was virtually saying that a law inferior to the constitution prevails over the supreme law. This is no a tenable proposition.

It appears that given the ideals of the constitution the king is the right authority to summon the emergency session.

And one may cite Article 55 for it is quite unthinkable to say that while he is allowed the power to prorogue or dissolve the house, he is not in a position to summon it.

Furthermore this is done with a view to install a truly responsible government as required by the constitution.

Given the position of the government on the matter, it could be argued that it could not impose its advice on the king.

Furthermore as a matter of law Article 40(1) is a general provision which may admit exceptions and the current political impasse seems to fall under this category.

Having gone through all these arguments, it is quite clear that whichever way, the king still need to play a major role.

But this is quite natural, for, occasionally the system has to rely on something extraordinary in order for it to function - the king, as it were, has to jumpstart the system which otherwise would not work or deliver.

Although the constitution is silent, we know that there were times when its operation ended in a cul-de-sac and failure to act on his part would tantamount to abdicating his duties.

As other public functionaries the king owes a duty to the taxpayers who borne the cost of maintaining the institution.

Anwar seems to have that in mind when he said that he did not rule out the possibility of going to king direct in order for him to form the new government.

Given the mechanics of Westminster system, it is actually not the end of the road for Abdullah. He can always challenge or even throw Anwar out of the government via the same manner: a vote of no confidence.

As such it is necessary for Abdullah to allow the system to function as it should be. As for Anwar since he has promised to uphold the constitution perhaps he could do that by putting in place some major changes such as allowing a free election for the speaker.

Those wanting to see this would want to have somebody from the opposition benches to preside the proceedings in the house. Without doubt this is one of the benchmarks of a first class Parliament.

Two approaches

From the legal standpoint, there is reason for the prevalence of the two approaches; namely forming government through the tabling of censure motion and the one to be done through the indication of support outside the house. It appears that both approaches can be accommodated within the framework of Article 43(4).

As was said above the first approach is the most ideal as it is more democratic.

This approach has its roots in the Stephen Kalong Ningkan case, a decision by the Kuching High Court in 1966.

But this can only happen in a political system that is open and democratic. And one wonders whether this can take place in Malaysia now.

We have seen how the Barisan Nasional government staged various maneuverings to avoid the motion.

Some of these, such as the threat to use the legal but somehow undemocratic Internal Security Act, are difficult to reconcile with the very ideals of the constitution.

The second approach is the result of literal reading of Article 43(4) together with Article 40(2)(a).

Obviously this - inspired by a Privy Council decision in Adegbenro case in 1966 - is more straightforward and faster than the first approach. Given all the undemocratic maneuverings this seems to be the more viable option.

But more importantly this approach would be able to pre-empt all the undemocratic attempts to resist regime change by the sitting government.

But the problem is that it very much dependant on the willingness of the king to take a more proactive role. As things stand this does not seem to be the case now.

Perhaps it is worth mentioning that some of the more stable democracies in Europe are monarchies. Meanwhile outside that continent we have seen how some monarchs took a leading role in restoring and strengthening their nascent democracies.

This is what happened in Spain, Thailand and to some extent, Jordan. It is not clear whether our monarchy would like to join the list.